Monthly Archives: October 2018

In the latest installments of “Making of a Murderer” on Netflix, the contrast between the truth and the law becomes ever more evident. The great public service of this entire series, and other such programs dealing with wrongful convictions, is in disseminating a healthy mistrust for the false certainties of the courts.

The word “verdict” is derived from the Latin meaning spoken truth. A witness is sworn to tell the truth, the whole truth and nothing but the truth. The notion that truth must necessarily emerge from the processes of the court is either the result of magical thinking or an absence of humility. We see a bit of both in the cases of Steven Avery and Brendan Dassey, most notably in the tirade against Dassey by Teresa Halbach’s brother Mike. Since the jury ruled that Dassey was guilty, he must perforce be guilty. Calling Dassey a rapist and a murderer as he sits there in front of him partakes of magical thinking inasmuch as the verdict is actually equated with the truth. Dassey is a convicted murderer and rapist but he is wrongly convicted. My perception of Mike Halbach is that his soul has been misshapen by the process that was supposed to bring him some sense of closure and even comfort. A Chinese proverb says “If you’re going out looking for revenge, first dig two graves.” In blindly equating justice with revenge, he is killing his better self. Nor is he the least bit interested in truth.

The truth is on a higher level than the law. While officers of the court would like you to believe that the law is somehow sacred, any slight familiarity with wrongful convictions demonstrates that the law, in the absence of humility and compassion, is not sacred but profane. It becomes a cold and blunt instrument. The Salem Witch Trials and the drowning of supposed witches operated on the presupposition that God intervened directly in human affairs. God would not allow wrongful convictions because He inspired those who issued the verdicts. That false certainty has oozed into the modern American courtroom where victim’s families are given the right to weigh into sentencing and parole matters. Only a minority of families would plead for mercy for the man or woman who murdered their loved one. Of course they are aggrieved–any normal person would be–but they should not have a say in whether a prisoner should be freed or remain in prison.

Neither does so-called “truth in sentencing” (TIS) which can be simply translated as life without the possibility of parole or faster execution. Thomas Frank in The Guardian looked at Bill Clinton’s crime bills and saw the disparities between the way crooked bankers are treated as opposed to indigent defendants:

“Allow me to offer a slightly different take on the 1990s. I think today (as I thought at the time) that there is indeed something worth criticizing when a Democratic president signs on to a national frenzy for punishment and endorses things like “three strikes”, “mandatory minimums”, and “truth in sentencing”, the latter being a cute euphemism for “no more parole”. The reason the 1994 crime bill upsets people is not because they stupidly believe Bill Clinton invented these things; it is because they know he encouraged them. Because the Democrats’ capitulation to the right wing incarceration agenda was a turning point in its own right.”

Lincoln Caplan, in The New Yorker, described The Anti-Terrorism and Effective Death Penalty Act of 1996 (A.E.D.P.A.) as “surely one of the worst statutes ever passed by Congress and signed into law by a President. The heart of the law is a provision saying that, even when a state court misapplies the Constitution, a defendant cannot necessarily have his day in federal court. Instead, he must prove that the state court’s decision was ‘contrary to’ what the Supreme Court has determined is ‘clearly established federal law,’ or that the decision was ‘an unreasonable application of’ it.”

These TIS laws were originally supposed to apply to death penalty and terrorist acts, specifically brought in after the Oklahoma City bombing. In “Making a Murderer”, Steve Drizin applies Frank’s critique and extends it to the even more severe damage that TIS has had on all habeas petitions. He echoes Rubin “Hurricane” Carter’s words about getting out of prison: “I narrowly escaped through the eye of a needle” except that the eye is now a tenth the size as it was in Rubin’s day. That is why Brendan Dassey is still in prison today. Even though a federal judge overturned his bogus confession and conviction, and his decision was affirmed by a three judge panel on a higher level, the state was able to have the decision overturned by the full seven judge panel.

Dassey was tricked and cajoled into making a false confession, very much in line with David McCallum, Burns and Rafay. Once again, a young person without legal representation, in Dassey’s case intellectually limited, is made to think that confessing to a crime carries less consequences than denying involvement. Of course, older people sometimes make the same mistakes during interrogation, but not with the same frequency. Dassey was really the perfect target, spoon-fed an unlikely scenario which he sought to embellish. Had there been any forensic evidence of his involvement, Northwestern would never have represented him. The absence of forensic evidence, as was the case with McCallum and Burns and Rafay, is the first marker of a wrongful conviction.

But a primary cause of wrongful convictions, in our experience, is when a young suspect (especially) talks to police without legal representation. It bears repeating a directive from both sides of the law: DURING A CRIMINAL INVESTIGATION, NEVER TALK TO POLICE IN THE ABSENCE OF A LAWYER. THE POLICE ARE TALKING TO YOU WITH ONE GOAL: TO IMPLICATE YOU. THE TRUTH–THAT YOU HAVE COMMITTED NO CRIME– WILL NOT PROTECT YOU. POLICE ARE PRIMARILY INTERESTED IN A CONVICTION.

The problem stems from a psychological attribute of people that is a strength in most normal social situations. People like to tell their stories. It’s a form of entertainment for an audience of friends and for the teller himself. The police are well aware of this tendency and exploit it wherever possible. While most police and prosecutors actually believe in the guilt of the suspect, they often form their belief prematurely. They want confirmation from the suspect in lieu of forensic evidence. But the crime scene or scenes should provide the evidence; confessions from unwitting people are are a dangerous shortcut. The law allows, even desires, these confessions, but the truth can be ignored if the authorities lust after a pending conviction. The more publicity a case might have, the more likely tunnel vision will take hold.

In the third hearing ( rarity) that overturned the decisions vacating Dassey’s conviction, the judge’s focus on Dassey’s behavior and the pressure (or lack of it) that bear on the validity of the confession. Nirider insists that Dassey’s will was overborne while the majority of judges insist that the confession was freely given. As in Burns and Rafay and David McCallum, appearances are given weight they do not deserve. How a person appears on the outside–even his body language–is not indicative of truth or falsehood. Rather it is a matter of opinion and the accuracy of such judgments is about 50-50.

Kathleen Zellner, representing Steven Avery, becomes the focal point of Part 2 in Making A Murderer. She combines dogged investigative skills with legal expertise. Commenting on Dassey’s hearing before the seven judge panel, she realizes right away that Northwestern’s (Laura Nirider) argument is doomed. She knows that the application of Constitutional law and legal arguments themselves are no longer going to cut it in the absence of habeas rights. Her emphasis with Avery is to turn around the case with new evidence, and to tell the judges something they do not already know. Zellner discovers snuff porn and child porn on the hard drive of a computer owned by Bobby Dassey, the defendant’s brother. Photos of murdered women, even a decapitated one, appear. If one were to guess where Brendan Dassey got his description of what occurred during the murder, it might well have been from these photos which Bobby likely shared with him. Zellner makes the case for Brendan’s brother being a more viable suspect in Teresa Halbach’s murder than Brendan himself.

The weakening of habeas rights, which have saved many people from wrongful executions and wrongful convictions, has possibly put American democracy into a death spiral. Laws are being misapplied; the scales of justice are now heavily tilted in the direction of the state prosecutors, and the police when protection of individual rights are the real foundation of the system. Most people don’t care about this distinction until they themselves become ensnared in the justice system. AEDPA, as a direct attack on the justice system, is the true American tragedy. In pointing this out, Making A Murderer has taken on weight and importance that its creators could not have imagined. Judges who talk about strict adherence to the Constitution are really talking about the denial of rights to mostly indigent and uneducated defendants who provide a convenient scapegoat for the ills of society.